DOJ Tells Texas Court it Should Not Judge Merits of Trump’s Border Declaration

A U.S. Customs and Border Patrol agent passes along a section of border wall in Hidalgo, Texas.  (AP Photo/Eric Gay, File)

EL PASO, Texas (CN) – Lawyers for the Trump administration told a federal judge in Texas Thursday that the nation’s lawmakers, not its courts, should determine whether or not the president’s declaration of an emergency at the southern border constitutes an abuse of power, as critics have alleged in multiple lawsuits playing out across the country.

The argument from the Department of Justice came during a hearing in one such case in El Paso, Texas.

El Paso County and the advocacy group Border Network for Human Rights contend in a lawsuit that President Donald Trump’s declaration of a national emergency in February was a violation of the National Emergencies Act aimed at bypassing the will of Congress to speed up construction of the president’s long-promised border wall.

Outlining the plaintiffs’ case against the president before Senior U.S. District Judge David Briones of the Western District of Texas, attorney Ephraim McDowell cited the president’s own statement that he “didn’t need to” declare an emergency.

“It was being used as a political tool,” McDowell said.

McDowell, of the Washington D.C.-based firm O’Melveny & Myers, told the judge that unlawful immigration at the southern border does not constitute an “unforeseen” circumstance calling for immediate action – the dictionary-definition of “emergency.”

Justice Department attorney James Burnham countered that Congress did not outline a clear definition of an “emergency” when it passed the National Emergencies Act, and that it would be an “extraordinary” move for the courts to prescribe such a definition.

“Congress precluded judicial review” of emergency declarations, Burnham insisted.

The government asked Briones to rule that El Paso County and the Border Network do not have standing to sue, arguing that they have not suffered tangible injuries from the declaration and that such claims are “speculative.”

Attorneys for the plaintiffs argued that the president’s justification for the emergency – that “we have an invasion of drugs, invasion of gangs, invasion of people” – has harmed the region’s reputation and its economic prospects.

The hearing came as El Paso continues to reel from a deadly mass shooting earlier this month. Authorities believe the suspect in the shooting authored a racist manifesto that voiced fears of a “Hispanic invasion” of Texas. According to a police affidavit, the suspect admitted his racist intent in the killings after he surrendered, telling police he had targeted “Mexicans.”

Briones did not ask questions during Thursday’s hearing, apart from one to clarify whether the plaintiffs had abandoned a specific issue in their case. He did not indicate when he might issue his ruling.

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